Café Pacific, David Robie

1 December, 2012

What an irony. The first serious test case since the Fiji regime’s draconian Media Industry Development Decree was imposed in 2010 has arisen out of a New Zealand newspaper report late last year castigating the post-coup Fiji judiciary. The Fiji Times ran the “scandalising” article unchanged the following day on 7 November 2011 and a follow-up article about six months later which also sparked a contempt charge. And the stakes are disturbingly high – the prosecution is calling for a $500,000 fine and six-month jail sentence for the chief editor – totally out of proportion to the alleged offence.

At least, this was the demand by the regime’s lawyers at a mitigation hearing by Justice William Calanchini in the Fiji High Court this week. The Fiji Times (founded 1869) is the country's oldest and arguably still the most influential daily newspaper.

Even though both Oceania Football Confederation general-secretary Tai Nicholas, a New Zealander, had pleaded guilty last July to contempt of court for his outspoken comments suggesting there was no rule of law in post-coup Fiji reported in the Sunday Star-Times, and The Fiji Times had also been found guilty in October to contempt, the comments would clearly be regarded as normal freedom of expression in any less vindictive jurisdiction.

If the world needed further evidence of how Fiji’s “chilling” legal environment has not improved for free speech in the Pacific nation in spite of the lifting of formal censorship in January, this was it.

The Fiji Times legal case has rested on a mitigation defence that the contempt publication was "a mistake" – neither the publisher nor the editor were on duty on either dates of the offences. As reported by South Pacific Lawyers website, Justice Calanchini ruled in early October that former publisher Brian O’Flaherty and editor-in-chief Fred Wesley were guilty of contempt.

The judge found both men liable as publisher and editor under strict liability principles. Justice Calanchini said that views attributed to Nicholas in the original article amounted to a contempt because a fair minded and reasonable person reading them would conclude that "those who claim to be performing judicial functions in Fiji are not in fact a judiciary at all” and presented a “real risk to the administration of justice in Fiji by undermining the authority, integrity and impartiality of the court and the judiciary”.

Fiji has been frequently criticised in recent years for proceeding with contempt of court charges that infringe international human rights to freedom of opinion and freedom of expression.

Fiji Times lawyer John Apted told Justice Calanchini that chief editor Fred Wesley was unaware of the story that was published. And according to the newspaper’s own report of the mitigation meeting:

“It was entirely up to the sports editor who, due to time constraints and no show of some staff, admitted he did not read the article.

“Apted says on that day the editor, Fred Wesley, was not at work.

“In his mitigation submission, Apted once again asked for forgiveness from the court on behalf of his client.

“He also told the court that the Fiji Times had agreed to publish an apology on the front page of the newspaper.

“He said the Fiji Times was a very good corporate citizen and was working for the communities and a good example was the publishing of the Nai Lalakai and Shanti Dutt vernacular despite making losses.”

“The Attorney-General’s office proposed that a $500,000 fine be imposed on the Fiji Times Limited and a six-month imprisonment term for its editor-in-chief Fred Wesley.

“Appearing on behalf of the Attorney-General, acting Solicitor-General Sharvada Sharma submitted that given the seriousness of the contempt offence the Fiji Times should:

• pay no less than $500,000 within a period of time deemed appropriate by the court.

• the owners and directors should enter into a good behavior bond of $500,000 suspended for two years because the company was a repeat contempt of court offender."

Sharma told the court that the contempt was the result of a “gross negligence and recklessness” by the newspaper.

In spite of the contempt proceedings, Andrew Walshaw reported last December that Tai Nicholas had been given a place in one of the International Football Association Federation’s (FIFA) four anti-corruption panels.

“The New Zealander has been given a place on FIFA's Revision of Statutes Task Force entrusted with reviewing the rule book as part of FIFA president Sepp Blatter's cleanup campaign.

“The move comes as the Fiji government announced that legal action was being taken over published remarks made by Nicholas about the Fijian judicial system.”

A Fiji government statement said at the time: "The Attorney-General views these comments as scandalising the courts in Fiji, in that they are a scurrilous attack on the judiciary, thereby lowering the authority of the judiciary in Fiji."

In a similar case, the New Zealand Law Society condemned the Fiji regime’s decision to charge a prominent civil society group and its chief with contempt of court. The Citizens Constitutional Forum (CCF) and director Reverend Akuila Yabaki had been charged over an article in the NGO's newsletter, Tutaka, which referred to a critical report on the rule of law in Fiji by the Law Society of England and Wales charity.

In a Radio Australia Pacific Beat interview, Jonathan Temm, president of the New Zealand Law Society, said that in his opinion no crime had been committed.

Justice Calanchini's sentence in The Fiji Times case has been reserved. The 2010 Media Decree effectively forced the sale of The Times by the Murdoch-owned News Limited group to local newspaper director Mac Patel of the Motibhai Group because of an imposed 10 percent foreign ownership ceiling. Contempt is separate from the decree, of course. But although the regime's vindictiveness against the newspaper continues, the mitigation submissions clearly demonstrate that Times staff need a big brush up on potential media law traps.